Since a 1940s dam on Sailor Creek near Fifield in Price County created a 200-acre recreational flowage, the Lobermeiers have considered it part of their home.
The S-shaped flowage is spotted with islands looking out at wooded shorelines, and for Dave Lobermeier, it’s a place of enjoyment.
But the Sailor Creek Flowage has also become the source of a decade of legal headaches.
“I feel like I’ve got a bullseye on my back, quite honestly,” said Dave, walking with his brother Butch on the frozen flowage this week.
Dave and Butch have been involved in a years-long water-and-land-rights controversy that’s led to a Supreme Court ruling, action in the legislature, and lobbying campaigns.
The issue has generated a ruling that could block thousands of waterfront property owners from putting in piers on flowages--and led to a bill proposing to flip that ruling.
But it started simply, with a family dispute involving Dave and Butch on one side and their sister and her husband on the other.
One section of the Sailor Creek Flowage waterfront is owned by various homeowners, but Dave owns the actual flowage bed under the water. That would never happen on a natural lake or river in Wisconsin, where the bed is public property, but land ownership under human-created flowages works differently.
As Dave tells it, his sister and brother-in-law, who own waterfront property but not the flowage bed, were destroying natural habitats on his flowage bed. He said they were removing submerged trees serving as fish habitat, pulling aquatic vegetation, and dumping fill.
“It came to a head because of the environmental stuff. I asked them to stop,” he said. “They basically flipped me off and kept doing it anyway. So then, me, knowing that I’ve got property rights, I told them, ‘Get the hell off my land.’ And I told them to get their dock out.”
That move landed Dave in court against his family members, who argued since the water itself is public space, they couldn’t be prohibited from doing things like putting in a pier.
Dave lost in Price County Circuit Court, which he called a “kangaroo court”, and in the Court of Appeals. But in 2018, in a 4-3 decision, the State Supreme Court upheld his right as a flowage bed owner to dictate what happens on that land.
Legally speaking, that opened the door for any flowage bed owner in Wisconsin to block waterfront property owners from taking actions like installing piers.
Then, lawmakers like Sen. Patrick Testin (R-Stevens Point) got involved.
“We’re trying to get us back to common sense from a complicated situation that arose from the Supreme Court decision,” Testin said in an interview. “For 140 years, waterfront property owners have had the presumption of riparian rights, long before Wisconsin was even a state.”
Testin’s so-called Protect Our Piers bill passed the Assembly last month and will next be considered by the Senate.
At a hearing last month, Testin was challenged by Sen. Dave Hansen (D-Green Bay).
“How many piers have been denied right now that you’re aware of?” Hansen asked.
“I don’t know offhand, Senator,” Testin replied.
“A lot? A few?” pushed Hansen.
“We don’t know,” said Testin.
“I think we’re going to hear testimony later on that some people would say [this bill] is a solution in search of a problem,” Hansen concluded. “The problem doesn’t exist.”
Dave and Butch Lobermeier were at that hearing, fighting a bill they said would decimate the flowage bed
property rights they bought years ago.
“This is state-sanctioned trespass and destruction of property when the flowage bed is privately owned,” Butch told the Senate Natural Resources and Energy Committee.
Dave argued it’s simple. The state’s Public Trust Doctrine ensures water is open to everyone, but, in the case of flowages, not the land underneath.
“I get mixed up as to how this turns into a complex matter. People can use the water...have legal access, use
the water all day long. They can’t use our land. They shouldn’t be allowed to use our land,” he said.
But bill supporters like the Wisconsin Realtors Association have been organized and vocal.
Issue ads feature Mike Spranger, who bought waterfront property on the Biron Flowage near Wisconsin Rapids, confident he could put in a pier his grandchildren could use.
We visited him in January, producing this story.
“I never, never in my wildest dreams assumed that we could lose the right to place a pier or give up our control of it,” Spranger said.
Spranger testified at the Senate hearing. He’s a constituent of Testin, the author of the bill.
“People, they spend and save their entire life for vacation homes up north or in other places around the state,” Testin said. “If they buy waterfront property, they want to be able to place a dock or a pier and be able to fish and swim and recreate.”
The bill now includes a major amendment that may help placate some of the concerns voiced by utility companies, paper mills, and groups like the Wausau-based Wisconsin Valley Improvement Company. Those groups often own wide swaths of flowage beds behind power-generating dams. The groups originally came out in opposition to the bill, in part worried the privileges granted to waterfront property owners would damage the standing of their operating licenses with the Federal Energy Regulatory Commission. The amendment attempts to address those concerns, but doesn’t do much for individual flowage bed owners like the Lobermeiers.
Testin said he hopes the Senate has the bill on Gov. Tony Evers’ desk by the end of the month.
On the Sailor Creek Flowage, Dave Lobermeier hopes to steer focus on the topic toward property rights and away from an odd family squabble.
“If you don’t have the law, what do you need?” he asked rhetorically. “You need sympathy. How do you get sympathy? [Say,] ‘Oh, my brother’s picking on me.’”
The legal case started more than eight years ago, and while the process can be wearying, Dave and Butch Lobermeier plan to keep fighting.
“I have been asked the question many times. Why? It’s because if they can do it to my deed today, what makes them not be able to do it to anybody else’s deed tomorrow?” Dave said. “What’s right is right and what’s wrong is no man’s right. I and my wife were not going to let a mob of people steal our land.”